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Renewal of Criminal Law in the Customary Law … 61 Dhini Hindria Restuti, Renewal of Criminal Law in the Customary Law … IJCLS 3(1) (2018) 61-70 IJC INDONESIAN JOURNAL OF CRIMINAL LAW STUDIES LS http://journal.unnes.ac.id/sju/index/php/ijcls Renewal of Criminal Law in the Customary Law Dhini Hindria Restuti1 1Postgraduate Program Faculty of Law Universitas Diponegoro Semarang, Central Java, Indonesia Received February 25 2018, Accepted April 22 2018, Published May 30 2018 DOI: 10.15294/ijcls.v3i1.17104 How to cite: Restuti, D.H. (2018). ‘Renewal of Criminal Law in the Customary Law’, Indonesian Journal of Criminal Law Studies 3(1): 61-70. DOI: 10.15294/ijcls.v3i1.17104 Abstract This research aims to find out the position of customary law in the renewal of criminal law and also main difference between the Indonesia Criminal Code and Custom Criminal Law. The research method used in this research is qualitative normative juridical approach. In this research we are able to find the result, that is, if the Customary Law acts as the source of law in the Renewal of Criminal Law, then it can be seen from the angle of policy approach. First, as part of social policy. Second, as part of criminal policy. Third, as part o law enforcement policy. Then the main differences between the Indonesia Criminal Code and Custom Criminal Law lie in the subject of Law, deliberate or mistake, the crime doer, trial offence, nature of offence. Keyword: KUHP, Customary Criminal Law INTRODUCTION Indonesia is a state of law (rechtstaat), where every aplicable conditions always hold on a law system nationaly acceptable. What is done by the state organizer or the people must relies on the law. In organizing the social life, there are two kinds of laws, they are private law and public law. The criminal law as part of public law field has its own codification that is the Indonesia Criminal Code. The recent the Indonesia Criminal Code is the heritage of the Dutch colonial government in Indonesia first known as W.v.S. (Wetboek van Straftrecht) and valid according to principle of concordance. the Indonesia Criminal Code now has already been more than 60 years. Indonesia Criminal Code which had already aged and never been changed was seen that it was capable of obstructing the maintenance of national legal development that gradually continuous to be increased in order to law renewal and guide the legal order to ensure justice and legal certaintu and provide protection toward human praise and dignity for a long term. Therefore, the reformulation of the the Indonesia Criminal Code become one of the important elemen in realizing Indonesia criminal law renewal. Barda Nawawi Arief states that the effort in carrying out the (criminal) law renewal is basically an ongoing and continuous unstopable activity. Jerome Hall mentions the term “a permanent on going enterprise”. Especially in the *Email: [email protected] Address: Jl. Imam Bardjo, S.H. No.1-3 Kampus UNDIP Pleburan, Semarang, Central Java, 50241, Indonesia Phone/Fax: (024) IJCLS8313516 Published by Faculty of Law Universitas Negeri Semarang This work is licensed ISSNunder (Print) a Creative 2548-1568 Commons ISSN Attribution (Online) 2548-Non -1576Commercial ShareAlike 4.0 International License. All writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. INDONESIAN JOURNAL of CRIMINAL LAW STUDIES 3(1) (2018) 61-70 62 field of criminal law renewal, Jerome Hall states must be a permanent and continuous effort and any detail note/document about it should be kept and maintained (Nawawi Arief, 2005). The formulation of the the Indonesia Criminal Code in the form of the Indonesia Criminal Code draft began in 1958 with the establishment of National Legal Development Institute (LPHN) which was later changed to National Legal Development Board (BPHN). The concept of the design is inseparable from the idea that the characteristics of Law in Indonesia is the adoption of the social order of society which is reflected in the behavior of life and social life in the heterogeneous domain of the Indonesian society. In the legal system of Indonesia is also known three legal systems that become integral parts of each other, namely customary law, Islamic law, and western law. The existence of customary law as a living law can not be denied its role as a basic framework for the preparation of national law in the future. One of the main concepts of legal recognition that develops or lives in society is the adoption of a system of sanctions in customary law (customary law) in the national legal system. The recognition and protection of the application of customary law sanctions is important in the life of cultural societies, because with customary sanctions, it can be constructed or created a balance and social harmonization, the interests of the human and individual groups, between the community and the society from the traditional mind of the Indonesian nation. Etymologically the term of customary law consists of two words, namely law and custom. Law is a collection of rules consisting of norms and sanctions aimed at maintaining order in human relationships so that security and order are preserved. While custom is a reflection of the personality of a nation, is one of the embodiments of the nation soul concerned from century to century. In the context of contemporary Arab thought, custom or tradition is defined as a cultural heritage, ideological, religious, literary, and emotionally and ideologically charged arts (Gustian, 2011). As the identity of the nation, the existence of customary law must have characteristics and characteristics in accordance with the philosophy and culture of the nation. National criminal law now determines that in determining the existence of a criminal offense it is prohibited to use analogies. These provisions reinforce the principle of legality which is the main principle in the national criminal law which positively applies now. In reality, the customs of Indonesian people have their own rules which among them have sanctions commonly known as customary law. Such customary law is certainly not written, in the sense of not being a written law that was officially endorsed by the state as well as the law. This indicates that the Indonesian people still hold the unwritten law that is the customary law itself along with sanctions for violation of the unwritten law. On the basis of the above explanation, the author will try to discuss the value of customary law in the renewal of criminal law in Indonesia. Based on the above description can be formulated the problems of where is the position of customary law in the renewal of criminal law? And how is the difference between Indonesia Criminal Code and Custom Criminal Law?. RESEARCH METHOD This research is a qualitative research with Juridical Normative approach. using normative case studies of legal behavioral products, for example reviewing the law. The subject of the study is the law that is conceptualized as the norm or rule that is in society IJCLS Published by Faculty of Law Universitas Negeri Semarang ISSN (Print) 2548-1568 ISSN (Online) 2548-1576 63 Dhini Hindria Restuti, Renewal of Criminal Law in the Customary Law … and becomes the reference of everyone's behavior. Thus normative legal research focuses on the inventory of positive law, legal principles and doctrines, the discovery of the law in the case of concreto, the systematic law, the level of synchronization, comparative law and legal history (Muhammad, 2004). Primary legal materials, namely all legal materials / materials that have juridical binding status. Primary legal material consists of laws and regulations relating to research and secondary legal materials, ie in the form of materials or related material and explains the problems of primary legal materials consisting of books and literature related Mining Geothermal in particular. The legal material used in normative law research is literature of basic material which in research science is generally called secondary law material (Marzuki, 2005). FINDING AND DISCUSSION The Position of Customary Law in Indonesia Indonesia is an archipelagic country that has diverse ethnic groups, and of course the culture and norms it embraces will vary. This diversity will give rise to different values of different ethnic groups in viewing and resolving the various issues that occur among them, not least in cases related to honor and morals, as this is not only the parties involved in but also involves a wider community community. Article 18 B Paragraph (2) of the 1945 Constitution of the State of the Republic of Indonesia is expressly stated that "the State recognizes and respects the provisions of indigenous and tribal peoples along with their traditional rights as long as they are alive and in accordance with the development of society and the principle of the Unitary State of the Republic of Indonesia. governed by law". Similarly Article 28 I Paragraph (3) states that, the cultural identity and rights of traditional communities are respected in harmony with the development of the times and civilizations. In the appendix to Act Number 17 Year 2007 concerning the Long- Term Development Plan for 2005-2025 letter G, it is also asserted that in the reform era, efforts to realize the national legal system continue to include several issues: First, the development of legal substance, both written and legal law unwritten mechanisms have a mechanism for establishing better national law in accordance with development needs and community aspirations. Secondly, the involvement of all components of society that have high legal awareness to support the establishment of a national legal system that is aspired (Abdulah, 2015). Therefore Indonesia recognizes customary law. The term customary law is a Dutch translation recorded by Snouck Hurgronye when he conducted research in Aceh (1891- 1892) namely "Adatrecht", intended to distinguish between customs or establishments with customs that have legal sanctions.
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